ABOVE: Advocates in front of the Supreme Court. Washington Blade photo by Michael Key.
The U.S. Supreme Court announced on Monday it has agreed to hear a case from a Philadelphia-based taxpayer-funded adoption agency seeking a First Amendment right to refuse child placement into LGBTQ homes — even though the agency consented to a city contract prohibiting anti-LGBTQ discrimination.
The court listed the case, Fulton v. Philadelphia, on its order list Monday, which indicated the petition for certiorari filed by Catholic Social Services in July 2019 seeking review was granted. It takes a vote of four justices to issue a writ of certiorari — or agree to take up a case — but the vote for that decision isn’t public.
Leslie Cooper, deputy director of the American Civil Liberties Union LGBT & HIV Project, said in a statement the case “could have profound consequences for the more than 400,000 children in foster care across the country.”
“We already have a severe shortage of foster families willing and able to open their hearts and homes to these children,” Cooper added. “Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse. We can’t afford to have loving families turned away or deterred by the risk of discrimination.”
The petition from Catholic Social Services — filed by the Becket Fund for Religious Liberty, an organization that takes up religious freedom lawsuits — sought clarification on whether a government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system “on taking actions and making statements that directly contradict the agency’s religious beliefs.”
The Becket Fund also called on the Supreme Court to revisit its 1990 decision in Employment Division v. Smith, which determined Oregon could deny unemployment benefits to Native Americans for violating the state prohibition on the use of peyote, even for use in a religious ritual. The decision affirmed states aren’t required to accommodate otherwise illegal acts in the name of religious liberty under the First Amendment.
The petition also called on the Supreme Court to resolve a circuit split among the federal appellate courts. The question was whether “free exercise plaintiffs can only succeed by proving a particular type of discrimination claim — namely that the government would allow the same conduct by someone who held different religious views — as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held.”
Katy Joseph, policy and legislation adviser for Interfaith Alliance, said in a statement the decision to take up the case “indicates an openness by the Supreme Court to authorize discrimination in child welfare.”
“A decision in favor of Catholic Social Services would vastly distort our first freedom by allowing faith-based providers to needlessly restrict the pool of prospective foster and adoptive parents, forcing vulnerable children to suffer the trauma of state care longer than necessary,” Joseph said.
The case came about after the City of Philadelphia learned in March 2018 that Catholic Social Services, which the city had hired to provide foster care services to children in child welfare, were refusing to license same-sex couples despite a contract prohibiting these agencies from engaging in anti-LGBTQ discrimination.
When the city said it would terminate the contract, Catholic Social Services sued on the basis it can maintain the contract and refuse placement into LGBTQ homes for religious reasons under the guarantee of free exercise of religion under the First Amendment.
A federal judge in Pennsylvania and the U.S. Third Circuit Court of Appeals denied a preliminary injunction in favor of Catholic Social Services. The Third Circuit, which declined to revisit the case “en banc” before the full court, based its decision in part on the 1990 ruling in Employment Division v. Smith.
A major focal point in the case are petitioners Sharonell Fulton and Toni Simms-Busch. Neither of them are heads of Catholic Social Services, but are foster moms who adopted and fostered children through Catholic adoption agencies in Philadelphia.
“CSS has been a godsend to my family and so many like ours,” Simms-Busch said in a statement. “I don’t think I could have gone through this process without an agency that shares my core beliefs and cares for my children accordingly. We are so grateful that the Supreme Court has agreed to hear our case and sort out the mess that Philadelphia has created for so many vulnerable foster children.”
The Supreme Court agrees to take up the case as Catholic adoption agencies have been threatening to close their doors in the aftermath of the U.S. Supreme Court decision for same-sex marriage as well as state and federal polices prohibiting them from using sexual orientation and gender identity as factors in child placement.
Late last year, the Trump administration lifted an Obama-era rule prohibiting recipients of federal grants, including adoption agencies, from engaging in anti-LGBTQ discrimination, thereby permitting these agencies to refuse placement into LGBTQ homes. Multiple states, most recently Tennessee, have also enacted laws allowing adoption agencies to decide child placement based on religious beliefs, including by denying placement into LGBTQ families.
Lori Windham, senior counsel for the Becket Fund, commended the Supreme Court in a statement for agreeing to take up the case, urging them to rule in favor of the adoption agency.
“Over the last few years, agencies have been closing their doors across the country, and all the while children are pouring into the system,” Windham said. “We are confident that the court will realize that the best solution is the one that has worked in Philadelphia for a century — all hands on deck for foster kids.”
The Supreme Court continues to consider a trio of other cases — Bostock v. Clayton County, Zarda v. Altitude Express and EEOC v. Harris Funeral Homes — which will determine whether anti-LGBTQ discrimination is a form of sex discrimination. Theoretically, the court could rule in favor of LGBTQ workers in those cases, greatly expanding civil rights protections for LGBTQ people, then read an expanded First Amendment right for religious institutions to engage in anti-LGBTQ discrimination in the Fulton case, diminishing rights for LGBTQ workers.
The case is along the lines of other litigation the Supreme Court agreed to hear late last year — Our Lady of Guadalupe School v. Morrissey-Berru, Agnes and St. James School v. Darryl Biel — in which Catholic schools are seeking an expanded ministerial exemption under the First Amendment in hiring practices. A ruling in those cases of Catholic schools could grant them significant leeway in employing teachers based on religious views, allowing them to refuse to hire or fire teachers for being LGBTQ.
Winnie Stachelberg, executive vice president for external affairs at the Center for American Progress, in a statement urged the court to rule the First Amendment doesn’t give taxpayer-funded adoption agencies the right to refuse placement into LGBTQ homes.
“The city government should not be forced to allow discrimination against some families,” Stachelberg said. “Religious-based agencies that accept taxpayer funds must act in the best interests of the children in their care. Sexual orientation, gender identity, faith, or other characteristics unrelated to a prospective parent’s abilities to provide a safe home should not affect placement decisions. These agencies cannot be allowed to weaponize religious freedom in order to deprive children of welcoming homes and loving families.”
The Fulton case has reached the Supreme Court before. Last year, Catholic Social Services sought injunctive relief from the Supreme Court — even before the case had been fully briefed in lower courts — to refuse placement into LGBTQ homes as its litigation against the City of Philadelphia moved forward. The Supreme Court rebuffed this request, although U.S. Associate Justices Samuel Alito, Clarence Thomas and Neil Gorsuch signaled they would have granted the injunctive relief.
The American Civil Liberties Union has intervened in the case and is representing the Support Center for Child Advocates and Philadelphia Family Pride.
Although the Supreme Court has now agreed to consider the case, a decision isn’t expected anytime soon and will be part of the court’s 2021 term. According to the ACLU, a briefing is expected to be complete late spring or early summer this year, which will be followed by arguments in October and a ruling after January 2021.
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